HomeMy WebLinkAboutCongdon Orchards, Inc.; Congdon Development Compan - Tolling Agreement CITY OF YAKIMA
LEGAL
DEPARTMENT
200 South Third Street, Yakima, Washington 98901 (509)575.6Q30 Fax (509)575-6160
PRIVILEGE AND CONFIDENTIAL: COVERED BY THE ATTORNEY - CLIENT AND
ATTORNEY WORK PRODUCT PRIVILEGES
MEMORANDUM
October 1, 2009
TO: Honorable Mayor and Members of the City Council
Dick Zais, City Manager
FROM: Jeff Cutter, City Attorney
SUBJECT: City of Yakima and Congdon Orchards, Inc. Letter Agreement
Attached is the original Letter Agreement dated October 1, 2009 between the City of
Yakima and Congdon Orchards, Inc. /Congdon Development Company, LLC. The
Agreement extends the original Tolling Agreement entered into between the parties on
December 1, 2005, which was subsequently extended by three previous Letter
Agreements. The Tolling Agreement will now expire on October 1, 2011.
JC /pm
Attachment
Sep 23 2009 4:59PM Clifford Adams (925) 284 -7091 p.9
Sep 23 2009 15:41 City of Yakima 509 -576 -5335
p.8
LETTER AGREEMENT
Through their execution of this Agreement, the parties hereto agree: (t) to
further extend the effect of the Tolling Agreement entered into between the
parties effective December 1, 2005, which was subsequently extended by virtue
of three previous Letter Agreements, so that the Tolling Agreement will now
expire at 5:00 p.m. on October 1, 2411; and (2) that the effect of this Letter
Agreement shall relate back to October 1, 2009 in order that there be no lapse in
the continuing effect of the original Tolling Agreement entered into between the
parties.
As mutual consideration for the extension of the Tolling Agreement the
parties covenant and agree that during the period of the tolling extension set
forth above that neither party shall initiate legal action or file a complaint with
any court of legal jurisdiction against the other party for actions, or the lack
thereof, occurring prior to October 1, 2009, with the specific exception of the
issue of the validity of the City of Yakima's Airport Safety Overlay,
Chapter 1530 of the Yakima Municipal Code entitled "Airport Safety Overlay"
( "ASO ") to the extent the validity of the ASO is relevant to any new cause of
action arising after October 1, 2009. The parties further agree to consult with one
another at least every three months during the Tolling Extension to discuss
zesolution of the issues which produced the Tolling Agreement and extensions
thereto.
By signing below, both signatories to the Agreement attest that they are
the authorized representative of each party with authority to bind the respective
parties to this Agreement.
This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors, assigns, and legal representatives,
Letter Agreement - 1
Sep 23 2009 4:59PM Clifford Adams (925) 284 -7091 p.10
Sep 23 2009 15 :41 Citj of Yakima 505- 576 -S335 p.10
S& C liz>
DATED this / day of Septeraber, 2009.
CITY OF YAKIMA, WASHINGTON
R.A. Zai8, Jr., City
ATTEST:
p.KlMA 1%,
City Clerk SEAL
2 e, SHING i �'
Dated this 3 0 day of September, is
CONGD N ORCI INC.
By: / , 1. l
M � 027 r
Y
Gene R. (Dick) Woodin, Jr.
General Manager
CONGDON DEVELOPMENT COMPANY, LLC
By Cong�on Orchards, Inc., Manager
Y r d
Gene R. (Dick) Woodin, Jr.
General Manager
WESTHOME, LLC
By Con: don Orchards, Inc., Manager
By: .r(/ �./
Gene R. (Dick) Woodin, Jr.
General Manager
Letter Agreement - 2
• TOLLING AGREEMENT
It is hereby understood and agreed between CONGDON ORCHARDS, INC., a
Delaware corporation, CONGDON DEVELOPMENT COMPANY, LLC, a Washington
limited Iiability company, and WESTHOME, LLC, • a Washington limited liability
• company, its rlirectors, officers, employees, agents and assigns (together, "Congdon ")
and the CITY OF Y.4KTMA a political subdivision of the State of Washington, its
representatives, agents and assigns (together, "City ") that any limitation periods for
filing complaints or demands with any federal, state, or municipal court, agency or
dispute resolution service applicable to any claim or cause of action, including any
claim or cause of action grounded in contract, tort, statute, or equity, that Congdon
may possess against the City arising from or related to Congdon's Claim for Damages
filed with the City on February 15, 2005, are hereby tolled and shall be suspended
from running, effective December 1, 2005 (the "Effective Date "), regardless of the date
of actual signature by the parties.
Any limitation periods shall cease to be tolled and shall commence running
again thirty (30) days after the final decision or settlement of all claims in the matter
of Neighbors for Responsible Development (a/k/a "NERD ") v. City of Yakima, et al.,
Yakima County Superior Court Cause Number 02- 2- 02659 -2, whichever occurs later.
For purposes of this Agreement, "final decision" shall mean the final judgment that
terminates the action such that the judgment is final and no longer appealable. If
NFRD prosecutes an appeal of the above - referenced matter, the date of the final
decision shall be the date on which appellate review is terminated.
The City agrees that it will not assert a limitations defense on the basis of any
period of time that lapses while the aforesaid. period of tolling is in effect. This
Agreement shall not preclude the City from asserting a limitations defense on the
basis of any period of time that has lapsed prior to the date set forth below and this
Tolling Agreement - 1
•
0
Agreement shall not be deemed to revive any claim that is or was already
barred on the Effective Date of this Agreement. Nothing in this Agreement or in the
circumstances which gave rise to this Agreement shall be construed as an
acknowledgment by any party that any claim exists or has not already at the
Effective Date been barred by any applicable statute of limitation, laches, or other
defense based on the lapse of time.
This Agreement shall not operate as an admission of liability by any party.
Neither this Agreement nor any action taken pursuant to this Agreement shall be
offered or received in evidence in any action or proceeding as an admission of
liability by any party. This Agreement shall not be used in evidence in any action or
proceeding for any purpose other than to establish or to enforce its terms.
This Agreement is entered into by the parties to allow the parties to await
the final outcome, including appeals, if any, of pending litigation in which they are
both parties, being Yakima County Superior Court Cause Number 02- 2- 02689 -2,
Neighbors for Responsible Development v. City of Yakima, et al.
By signing below, both signatories to the Agreement attest that they are the
authorized representative of each party with authority to bind the respective
parties to this Agreement.
With the exception of the exchange of emails on December 1, 2005 confirming
the acceptance of all material terms of this agreement by the City of Yakima, this
Agreement comprises the entire agreement of the parties with respect to the tolling
of any statute of limitation, the doctrine of laches, or any other defense based on the
lapse of time; and this Agreement may be modified, amended, or supplemented only
by a written instrument signed by the parties. This Agreement shall be binding
upon and enure to the benefit of the parties hereto and their respective successors,
assigns, and legal representatives.
Tolling Agreement - 2
•
I
CITY OF YAKIMA, WASHINGTON .
By:, �ti n. � •
Its: N� Sti ,
ATTEST: ; j,
By Karen S. Roberts, City Clerk 1 2_g. o5" • - f '''_, K: e•' a : 247°6-11 i' Q
'S • . - F T` *' NltL '
•
� iiNG 1
CON ON ORCHARDS, INC.
); J/71 , (( O / : ' i g")
By: GenP R. (nick) Wnnrlin, Jr.
Its: General Manager
CONGDON DEVELOPMENT COMPANY, LLC
By C; ngdon Orchards, Inc., Manager
1 ( 7 / i />7„// / i
By: Gene R. (T?i rk) Wnnrdin, ,Tr.
•
Its: General Manager
WESTHOME, LLC
By Pongdon Orchards, Inc., Manager r /(
, Yli,- '
.
lfi
1
:y: Gene R. (Dick) Woodin, ' .
Its: General Manager
•
•
Tolling Agreement - 3
•
TOLLING AGREEMENT
It is hereby understood and agreed between CONGDON ORCHARDS, INC., a
Delaware corporation, CONGDON DEVELOPMENT COMPANY, LLC, a Washington
limited liability company, and WESTHOME, LLC, a Washington limited liability
company, its directors, officers, employees, agents and assigns (together, "Congdon ")
and the CITY OF YAKIMA, a political subdivision of the State of Washington, its
representatives, agents and assigns (together, "City ") that any limitation periods for
filing complaints or demands with any federal, state, or municipal court, agency or
dispute resolution service applicable to any claim or cause of action, including any
claim or cause of action grounded in contract, tort, statute, or equity, that Congdon
may possess against the City arising from or related to Congdon's Claim for Damages
filed with the City on February 15, 2005, are hereby tolled and shall be suspended
from running, effective December 1, 2005 (the "Effective Date "), regardless of the date
of actual signature by the parties.
Any limitation periods shall cease to be tolled and shall commence running
again thirty (30) days after the final decision or settlement of all claims in the matter
of Neighbors for Responsible Development (a /k /a "NFRD ") v. City of Yakima, et al.,
Yakima County Superior Court Cause Number 02 -2- 02689 -2, whichever occurs later.
For purposes of this Agreement, "final decision" shall mean the final judgment that
terminates the action such that the judgment is final and no longer appealable. If
NFRD prosecutes an appeal of the above - referenced matter, the date of the final
decision shall be the date on which appellate review is terminated.
The City agrees that it will not assert a limitations defense on the basis of any
period of time that lapses while the aforesaid period of tolling is in effect. This
Agreement shall not preclude the City from asserting a limitations defense on the
basis of any period of time that has lapsed prior to the date set forth below and this
Tolling Agreement - 1
Agreement shall not be deemed to revive any claim that is or was already barred on
the Effective Date of this Agreement. Nothing in this Agreement or in the
circumstances which gave rise to this Agreement shall be construed as an
acknowledgment by any party that any claim exists or has not already at the Effective
Date been barred by any applicable statute of limitation, laches, or other defense
based on the lapse of time.
This Agreement shall not operate as an admission of liability by any party.
Neither this Agreement nor any action taken pursuant to this Agreement shall be
offered or received in evidence in any action or proceeding as an admission of liability
by any party. This Agreement shall not be used in evidence in any action or
proceeding for any purpose other than to establish or to enforce its terms.
This Agreement is entered into by the parties to allow the parties to await the
final outcome, including appeals, if any, of pending litigation in which they are both
parties, being Yakima County Superior Court Cause Number 02 -2- 02689 -2, Neighbors
for Responsible Development v. City of Yakima, et al.
By signing below, both signatories to the Agreement attest that they are the
authorized representative of each party with authority to bind the respective parties
to this Agreement.
With the exception of the exchange of emails on December 1, 2005 confirming
the acceptance of all material terms of this agreement by the City of Yakima, this
Agreement comprises the entire agreement of the parties with respect to the tolling of
any statute of limitation, the doctrine of laches, or any other defense based on the
lapse of time; and this Agreement may be modified, amended, or supplemented only
by a written instrument signed by the parties. This Agreement shall be binding upon
and enure to the benefit of the parties hereto and their respective successors, assigns,
and legal representatives.
Tolling Agreement - 2
CITY OF YAKIMA, WASHINGTON
By :
Its:
ATTEST:
j "SVG i�
By Karen S. Roberts, City Clerk it
ei y
CONGDON ORCHARDS, INC.
By:
Its:
CONGDON DEVELOPMENT COMPANY, LLC
By Congdon Orchards, Inc., Manager
By:
Its:
WESTHOME, LLC
By Congdon Orchards, Inc., Manager
By:
Its:
Tolling Agreement - 3
Privileged and Confidential: revised Tolling Agreement Page 1 of 1
Moore, Debbie
From: Danysh, Terry [Danysh.Terry @dorsey.com]
Sent: Thursday, December 08, 2005 2:04 PM
To: Dick Zais (E- mail); Ray Paolella (E -mail)
Cc: Helen Harvey (E- mail); Debbie Moore (E- mail); Sonya Brandt (E -mail)
Subject: Privileged and Confidential: revised Tolling Agreement
Importance: High
Gentlemen:
Per Helen Harvey's comments of yesterday, I have revised the Tolling Agreement. Dick, please be so kind as to
sign it and have Karen Roberts sign it in attestation. If Debbie or Sonya could then fax back a signed copy, I will
forward it to the Congdon attorneys for their client signatures.
Terry Danysh
Dorsey & Whitney -v./it
1420 5th Ave. Ste. 3400 )
Seattle, WA 98101 ; `"
(206) 903 -8847
«Tolling Agreement.doc»
12/8/2005
Alan D. Campbell • James C. Carmody • J. Jay Carroll • Paul C. Dempsey
vl -I> James S. Elliott • Mark E. Fickes • Carter L. F eld • Chad L. Hatfield
Tyler M. Hinckley • Lawrence E. Martin • Kevan T. Montoya
Linda A. Sellers Michael F. Shinn • Sara L. Watkins
V E L I K A N J E H A L V E R S O N P . Of Counsel: Frederick N. Halverson • Terry C. Schmalz
- ...__ . ............u.......... _..._ -.. ATTORNEYS AT LAW
RECEIVED
October 19, 2007 OCT 2 2 2007
CITY LEGAL DEPT.
Jeff Cutter
City of Yakima Legal
200 South 3 Street
Yakima, WA 98901
Re: Letter Agreement /Congdon
Dear Jeff:
Enclosed please find two of the three original Letter Agreements that we negotiated, fully
executed by Congdon Orchards, Inc., Congdon Development Company, LLC, and Westhome,
LLC. I have the third original for my records.
Thank you for helping us get this done.
Sincerely,
VELIKAN E HALVERS 0 , P. I .
vl ,�
Mi ► ael F. Shinn
FS :bw
Encl.
g:\mfs \congdon development co-18353\ vs. city ofyakima \cutter trans kr agr2.doc
10/19/2007 2:35 pmmsoffice
509.248.6030 0 fax 509.453.6880 0 405 East Lincoln ® P.O. Box 22550 • Yakima, WA 98907 www.vhlegal.com
LETTER AGREEMENT
Through their execution of this document, the parties hereto agree: (1) to
further extend the effect of the Tolling Agreement entered into between the parties,
effective December 1, 2005, which was subsequently extended by virtue of two
previous Letter Agreements, such that the Tolling Agreement will now expire at 5:00
p.m. on October 1, 2009; and (2) that the effect of this Letter Agreement shall relate
back to July 24, 2007 in order that there be no lapse in the continuing effect of the
original Tolling Agreement entered into between the parties.
As mutual consideration for the extension of the Tolling Agreement the parties
covenant and agree that during the period of the tolling extension set forth above that
neither party shall initiate legal action or file a complaint with any court of legal
jurisdiction against the other party for actions, or the lack thereof, occurring prior to
July 24, 2007, with the specific exception of the issue of the validity of the City of
Yakima's Airport Safety Overlay, YMC Chapter 15.30 et. seq. ( "ASO "), to the extent
the validity of the ASO is relevant to any new cause of action arising after July 24,
2007. The parties further agree to consult with one another at least every six months
during the Tolling Extension to discuss resolution of the issues which produced the
Tolling Agreement and extensions thereto.
By signing below, both signatories to the Agreement attest that they are the
authorized representative of each party with authority to bind the respective parties
to this Agreement.
This Agreement shall be binding upon and enure to the benefit of the parties
hereto and their respective successors, assigns, and legal representatives.
CITY OF YAKIMA, WASHINGTON
R. A. Zais J�it Manager
er g
Letter Agreement - 1
ATTEST:,
(f
Debbie Moore, City Clerk S L
9 fi
, tJ dJ
CONG h N ORCHARDS, INC.
By: Gene R. (Dick) Woodin, Jr.
Its: General Manager _
CONGDON DEVELOPMENT COMPANY, LLC
By Cong / Orcha is, I c., Ma . ger
By: Gene R. (Dick) Woodin, Jr.
Its: General Manager
WESTHOME, LLC
By Co /don Orchards, Inc., Ma •,ager
4 / A d
By: Gene R. (Dick) Woodin, Jr.
Its: General Manager
Letter Agreement - 2
•